Case 1:11-cr-00115-LO Document 64

Filed 04/30/12 Page 1 of 8 PageID# 196

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division UNITED STATES OF AMERICA v. JORGE AVILA TORREZ ) ) ) No. 1:11cr115 (LO) ) )

MOTION OF THE UNITED STATES REGARDING TRIFURCATION OF THE TRIAL The United States, through the undersigned counsel, hereby proposes that the Court trifurcate the trial of this case a guilt phase followed, if convicted, by two distinct penalty phases. The Federal Death Penalty Act (FDPA) on its face provides for bifurcation a jury (unless the parties agree to proceed before the Court alone) first determines a defendants guilt and then, in a separate hearing, determines whether a convicted defendant should be sentenced to death. 18 U.S.C. 3593(b). The issue discussed below is whether the Court should further bifurcate the penalty phase the first part involving eligibility (whether the defendant is statutorily eligible for a death sentence) and the second involving selection (whether the defendant merits a death sentence). Although the Government believes that a unitary penalty phase, as envisioned by the FDPA, would pass appellate scrutiny, we propose bifurcation of the penalty phase between eligibility and selection because there is legal precedent for bifurcation along these lines and the facts of this particular prosecution warrant proceeding in such a fashion. This issue, we suggest, should be decided now, as different evidentiary standards may apply to the eligibility and selection phases, and an early decision on this issue will allow

Case 1:11-cr-00115-LO Document 64

Filed 04/30/12 Page 2 of 8 PageID# 197

the parties to structure and organize more efficiently their penalty phase evidence, in the event the defendant is convicted of the capital offense. I. THE ELIGIBILITY AND SELECTION COMPONENTS OF THE PENALTY PHASE The Supreme Court has identified two distinct phases of the capital sentencing process: the eligibility phase and the selection phase. Buchanan v. Angelone, 522 U.S. 269, 275 (1998). In the eligibility phase, the jury narrows the class of defendants eligible for the death penalty. Id. In the selection phase, the jury determines whether a death sentence should be imposed on the particular defendant that it has found eligible. Id. This construct is reflected in the FDPA. See United States v. Perez, 2004 WL 935260, at *4 (D. Conn. 2004) (describing the FDPA as narrowing the class of persons eligible for the death penalty in two ways: statutory intent factors and then statutory aggravating factors). A. The Eligibility Component

A defendant is not eligible for a death sentence unless certain statutory criteria are satisfied. First, the Government must prove beyond a reasonable doubt that the defendant was more than 18 years old at the time of the murder and that the defendant acted with any one of four mental states specified in the FDPA. See 18 U.S.C. 3591(a)(2)(A)-(D). Second, the Government must prove beyond a reasonable doubt the existence of at least one statutory aggravating factor. See 18 U.S.C. 3592(c)(1)-(16). In the wake of Ring v. Arizona, 536 U.S. 584 (2002), all of these eligibility factors operate as the functional equivalent of elements of the offense and are treated as such. United States v. Barnette, 390 F.3d 775, 784 (4th Cir. 2004) (the Ring Court made clear that when a statute requires the finding of an aggravating factor as a

-2-

Case 1:11-cr-00115-LO Document 64

Filed 04/30/12 Page 3 of 8 PageID# 198

condition to imposition of the death penalty, the aggravating factor requirement functions as an element of the offense), vacated and remanded on other grounds, 546 U.S. 803 (2005). In this case, the gateway factors consist of the following: A. The defendant, JORGE AVILA TORREZ, was 18 years of age or older at the time of the offense. 18 U.S.C. 3591(a). The defendant, JORGE AVILA TORREZ, intentionally killed the victim, Amanda Jean Snell. 18 U.S.C. 3591(a)(2)(A). The defendant, JORGE AVILA TORREZ, intentionally inflicted serious bodily injury that resulted in the death of the victim, Amanda Jean Snell. 18 U.S.C. 3591(a)(2)(B). The defendant, JORGE AVILA TORREZ, intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim, Amanda Jean Snell, died as a direct result of the act. 18 U.S.C. 3591(a)(2)(C). The defendant, JORGE AVILA TORREZ, intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and Amanda Jean Snell died as a direct result of the act. 18 U.S.C. 3591(a)(2)(D).

B.

C.

D.

E.

The statutory aggravating factors consist of the following: A. Previous Conviction of Violent Felony Involving Firearm (18 U.S.C. 3592(c)(2)). The defendant, JORGE AVILA TORREZ, has previously been convicted of a Federal or State offense punishable by a term of imprisonment of more than one year, involving the use or attempted or threatened use of a firearm (as defined in 18 U.S.C. 921) against another person, namely: 1. Use of a Firearm in Felony, Case No. 10-505, in the Circuit Court of Arlington County, Virginia (the abduction and robbery of M.N. on February 10, 2010). Use of a Firearm in Felony, Case No. 10-593, in the Circuit Court of Arlington County, Virginia (the robbery of K.M. on February 27, 2010).

2.

-3-

Case 1:11-cr-00115-LO Document 64

Filed 04/30/12 Page 4 of 8 PageID# 199

3.

Use of a Firearm in Felony, Case No. 10-595, in the Circuit Court of Arlington County, Virginia (the abduction of K.M. on February 27, 2010). Breaking and Entering while Armed, Case No. 10-597, in the Circuit Court of Arlington County, Virginia (the abduction of K.M. and J.T. on February 27, 2010). Use of a Firearm in Felony, Case No. 10-598, in the Circuit Court of Arlington County, Virginia (the abduction of J.T. on February 27, 2010).

4.

5.

B.

Previous Conviction of Other Serious Offenses (18 U.S.C. 3592(c)(4)). The defendant, JORGE AVILA TORREZ, has previously been convicted of 2 or more State offenses punishable by a term of imprisonment of more than 1 year committed on different occasions, involving the infliction of, or attempted infliction of serious bodily injury or death upon another person, namely: 1. Abduction with Intent to Defile, Case No. 10-503, in the Circuit Court of Arlington County, Virginia (the abduction of M.N. on February 10, 2010). Robbery, Case No. 10-504, in the Circuit Court of Arlington County, Virginia (the robbery of M.N. on February 10, 2010). Abduction, Case No. 10-591, in the Circuit Court of Arlington County, Virginia (the abduction of J.T. on February 27, 2010). Rape, Case No. 10-592, in the Circuit Court of Arlington County, Virginia (the rape of J.T. on February 27, 2010). Robbery, Case No. 10-594, in the Circuit Court of Arlington County, Virginia (the robbery of K.M. on February 27, 2010). Abduction with Intent to Defile, Case No. 10-596, in the Circuit Court of Arlington County, Virginia (the abduction of K.M. on February 27, 2010). Forcible Sodomy, Case No. 10-602, in the Circuit Court of Arlington County, Virginia (the sexual assault of J.T. on February 27, 2010). Forcible Sodomy, Case No. 10-603, in the Circuit Court of Arlington County, Virginia (the sexual assault of J.T. on February 27, 2010). Forcible Sodomy, Case No. 10-604, in the Circuit Court of Arlington County, Virginia (the sexual assault of J.T. on February 27, 2010).

2.

3.

4.

5.

6.

7.

8.

9.

-4-

Case 1:11-cr-00115-LO Document 64

Filed 04/30/12 Page 5 of 8 PageID# 200

Thus, for the defendant to be eligible for a death sentence, the jury must find: (1) the defendant was more than 18 years old at the time that he Amanda Snell; (2) at least one gateway factor; and (3) at least one statutory aggravating factor. B. The Selection Component

Once [the defendant becomes] death eligible, the jury [has] to decide whether he should receive a death sentence. In making the selection decision, the [FDPA] requires that the sentencing jury consider all of the aggravating and mitigating factors and determine whether the former outweigh the latter (or, if there are no mitigating factors, whether the aggravating factors alone are sufficient to warrant a death sentence). Jones v. United States, 527 U.S. 373, 377 (1999). Evidence offered to prove non-statutory aggravating factors, such as victim impact, is admissible in the selection phase. See Payne v. Tennessee, 501 U.S. 808, 823-26 (1991). In contrast to the intent factors and statutory aggravating factors, non-statutory aggravating factors do not function as elements because they do not affect eligibility. United States v. Higgs, 353 F.3d 281, 298 (4th Cir. 2003). In this case, the selection phase will address the non-statutory aggravating factors alleged by the Government and all mitigating factors submitted by the defendant, both statutory and non-statutory. II. BIFURCATION OF ELIGIBILITY AND SELECTION PHASES The concept of subdividing the penalty phase in a capital case arose in the wake of Rings holding that eligibility factors are the functional equivalent to elements of the underlying criminal offense. The clear implication of the holding was that eligibility and selection were distinct components of the process, with the former being subject to, among other things, various constitutional requirements. For example, In United States v. Jordan, 357 F. Supp. 2d 889, 903-5-

Case 1:11-cr-00115-LO Document 64

Filed 04/30/12 Page 6 of 8 PageID# 201

04 (E.D.Va. 2005), Judge Hudson recognized that, given Rings mandate, the Confrontation Clause would apply to the eligibility portion of the penalty phase, whereas it would not apply to the selection phase. For this reason, Judge Hudson bifurcated the penalty phase, explaining that if this case reaches the penalty stage, the proceedings will be divided between the eligibility and selection phases. If the jury finds, beyond a reasonable doubt, that the Government has proven an intent factor and one of the requisite statutory aggravating factors, they will immediately proceed to hear evidence on the nonstatutory factors. At that point, the jury will have concluded that the Government has proven all facts deemed by Ring to be the equivalent of elements essential to death penalty eligibility. Id. For similar reasons, Judge Lee bifurcated the penalty phase of a MS-13 murder case, see United States v. Rivera et al., EDVA No. 1:04cr283 (all non-capital verdicts), and Judge Ellis bifurcated the penalty phase in United States v. Hager, EDVA No. 1:05cr264 (appeal pending). Other courts have also bifurcated the penalty phases in capital prosecutions. See, e.g., United States v. Mayhew, 380 F. Supp. 2d 936 (S.D. Oh. 2005) (bifurcating the penalty phase due to emotional victim impact evidence); United States v. Johnson, 362 F. Supp. 2d 1043 (N.D. Iowa 2005) (same); United States v. Catalan-Roman, 376 F. Supp. 2d 96 (D.P.R. 2005) (denying bifurcation due to victim impact but granting it due to inconsistent mitigation offered by codefendants); United States v. Bodkins, 2005 WL 1118158, at *7 (W.D. Va. 2005) (bifurcating because there could be a risk that the government's victim impact testimony and bad character evidence, which would normally be part of a sentencing proceeding, could influence the jury's consideration of his guilt or innocence with regard to the threshold intent factors and the statutory aggravators that would make him eligible for the death penalty); United States v. Davis, 912 F. Supp. 938, 949 (E.D. La. 1996) (bifurcating, in part, to ensure that the jury's findings as to intent and the statutory factors would not be influenced by exposure to the separate and unrelated -6-

Case 1:11-cr-00115-LO Document 64

Filed 04/30/12 Page 7 of 8 PageID# 202

nonstatutory factors and information). Bifurcation in this case would serve the purpose of eliminating the prejudicial impact of hearing evidence of non-statutory aggravating factors, particularly evidence of the murders of Krystal Tobias, age nine, and Laura Hobbs, age eight, prior to the jurys determination of eligibility.

CONCLUSION For the foregoing reasons, the Government requests that the Court bifurcate any penalty phase in this case based upon eligibility and, if eligible, selection.

Respectfully submitted, Neil H. MacBride United States Attorney Michael E. Rich James L. Trump Jonathan L. Fahey Assistant United States Attorneys Attorneys for the United States

By:

/s/ James L. Trump Assistant United States Attorney 2100 Jamieson Avenue Alexandria, Virginia 22314 (703) 299-3726 jim.trump@usdoj.gov

-7-

Case 1:11-cr-00115-LO Document 64

Filed 04/30/12 Page 8 of 8 PageID# 203

CERTIFICATE OF SERVICE I hereby certify that on the 30th day of April, 2012, I electronically filed the foregoing Motion of the United States Regarding Trifurcation of the Trial with the Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF) to the following: Geremy C. Kamens, Esq. Federal Public Defenders Office 1650 King Street, Suite 500 Alexandria, Virginia 22314 Christopher M. Davis 1350 Connecticut Avenue, N.W., Suite 202 Washington, D.C. 20036

By:

/s/ James L. Trump Assistant United States Attorney Attorney for the United States United States Attorneys Office 2100 Jamieson Avenue Alexandria, Virginia 22314 (703) 299-3726 jim.trump@usdoj.gov

-8-